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By Eimear O’Neill, Research and Communications for the OMNIA Project

In the lead up to the assembly of EU leaders at the European Council in Brussels on 15 October, the Council’s Polish President Donald Tusk issued a letter of invitation to his colleagues, sending a strong message about the tone and context of EU discussions on the current refugee crisis. Tusk’s letter employs surprisingly harsh and direct language to frame the context of the high-level talks, with echoes of the controversial and at times demonising language that has been heard across Europe by some of its democratically elected national leaders. But was it appropriate for the President of the European Council to use a letter of invitation to introduce the discussions in such a controversial manner?

Lack of respect towards refugees

The letter of invitation sends a clear and worrying message, demonstrating, first of all, a lack of empathy for refugees. Tusk is guilty of misrepresenting the experiences of refugees arriving in Europe. He tells European leaders that the “exceptionally easy access to Europe is one of the main pull factors”. To use the word “easy” is astoundingly inaccurate and disrespectful, as without a doubt, the journey to Europe is both dangerous and costly. According to the International Organisation for Migration’s most recent figures, as of 16 October, 3,125 individuals are known to have died while crossing the Mediterranean. In a recent article, Professor Alexander Betts highlights that due to the lack of legal access routes to Europe for refugees, Syrians are having to pay over €1,000 to take the perilous crossing from Turkey to Greece. For comparison, a flight from Bodrum to Frankfurt costs €200. For the President of the European Council to claim that such a hazardous journey is “exceptionally easy” not only denies the lack of legal avenues for refugees to apply for asylum in the EU, but also promotes the mistaken idea that Europe has the right to further impede access to this fundamental right.

Tusk’s hostile and disingenuous language disregards the struggles endured by refugees seeking shelter in Europe. When he speaks about the need to “contain a new migratory wave”, he demonstrates his true lack of empathy. Referring to people as a “wave” not only removes their human personality, but also paints them as something to fear, sowing seeds of hostility towards refugees among his audience. Indeed, elsewhere in his letter, he refers to such waves as a “threat” to Europe. Distinguishing these people as “migratory” is a further punch of disrespect, as it ignores the struggles which are evident in the word “refugee”: the fear and danger they face as well as the long and arduous journey they have endured to reach safety. To speak of “contain[ing]” people in search of shelter shows not only a failure to understand their needs, but also ignores the commitments all Member States have made under international and EU law to provide international protection to individuals fleeing persecution, in particular Articles 18 and 19 of the Charter of Fundamental Rights of the EU.

Tusk sees only “refugee pressure”, and wishes “to stem the wave of refugees into Europe”. While it is important to consider the extent of the resources in Europe and the limits of each country’s ability to host refugees, approaching such a contentious subject with emotionally-charged language demonstrates Tusk’s aversion to dealing with this issue objectively.

Lack of diplomacy towards Turkey

Furthermore, the letter undermines any solidarity which the EU is trying to build with Turkey. Indeed, his tone towards Turkey in this letter is a break from his previous approach. During his address at the annual EU Ambassadors’ conference in June, Tusk stressed the need to “revitalise links with Turkey so that we are once again confident friends and partners on this and other matters”. In contrast, in this invitation, Tusk now claims that concessions with Turkey can only be justified if their agreement “effectively reduces the inflow of refugees” to Europe. His idea of a friendship is a strange one if it involves holding all concessions to ransom unless Turkey strengthens its border with Europe and continues to host more than its fair share of refugees. It ignores the fact that Turkey has taken 2 million refugees to date, despite the lack of developed infrastructure to host such a large number. Tusk’s perception of the EU—extending rewards and benefits if Turkey bears the brunt of the responsibility towards refugees—assumes a paternalistic role for the EU rather than a true partnership. His vision certainly does not embrace burden-sharing with its Eastern neighbours, but rather foresees Europe offloading its responsibilities beyond its borders.

Lack of understanding of his own function

Finally, the letter demonstrates Tusk’s perception of his role as President of the Council. Three issues are on the table, but only two – the future of the Dublin Regulation and the role of hotspots – are presented as having various options up for discussion. The President has taken the liberty of framing the third – the strengthening of external borders – so as to approach the discussion from a particular angle. Although he stresses the need to be prepared for “all scenarios”, this seems only to include the scenario of “containing” the arrival of new refugees, rather than a scenario which could improve EU Member States’ ability to efficiently welcome asylum seekers and process asylum claims. As President, he has taken the opportunity to redirect the focus of EU leaders before they even assemble to discuss the issue.

Tusk’s emphasis on “contain[ing] a new migratory wave” is interesting as it demonstrates a partiality towards one side of the European debate. Moreover, his position runs counter to the one taken by the Commission. During his speech to the EU Ambassadors’ conference, Tusk spoke about the tensions between the East and West of the EU, claiming that the Eastern countries “are thinking about containing the wave of migration, symbolised by the controversial Hungarian fence”, whereas the West seems to have a preference for mandatory quotas for the relocation of refugees. After the relative success of the Western approach, with a second legally binding relocation mechanism imposed by a qualified majority of Member States in the Council, Tusk’s recent letter has bolstered the position of the Eastern governments. Taking sides in this way may be an attempt to reassert the role of national governments, especially those in the East, in the European asylum crisis. Tusk could therefore be criticised by some as using his position as President of the European Council to counter the Western influence elsewhere in the EU. However, Tusk’s mandate, as set out in Article 15 of the Treaty on the European Union (TEU), requires him to work “in cooperation with the President of the Commission”. His focus on “containing” refugees in conflict with the relocation plans embraced by the Commission, is therefore a significant breach of his duties as President of the European Council.

This partisan attitude may garner criticism from a legal point of view, given the intended role of the European Council President and the precedent set by Tusk’s Belgian predecessor, Herman Van Rompuy. Under Article 15 of the TEU, the President of the Council should “endeavour to facilitate cohesion and consensus within the European Council”. As the first President of the Council, Van Rompuy was widely praised for his ability to build consensus between states. Unlike Van Rompuy, who played the role of impartial facilitator of discussion and builder of compromise, Tusk’s recent letter favours one point of view from the outset, inevitably putting his preferred slant on the talks. This may be disappointing to those who became used to Van Rompuy’s approach, which promoted the idea that  “every country should emerge victorious from negotiations”.

Tusk’s letter of invitation was a brazen statement. It declared a partiality towards preventing access to Europe over providing refugees with the international protection to which they are entitled and demonstrated his paternalistic attitude towards Turkey. Divergent views are inevitable in an enlarged European Union with different historical experiences among Member States, but as President of the European Council, Donald Tusk should use his position of influence more responsibly. By framing the issues in order to influence the discussions of European Heads of State, Tusk’s partisan letter of invitation goes beyond his mandate as President of the European Council.